Advisory Opinion 2223 Discussion Group

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Information and discussion on WSBA Advisory Opinion 2223: Lawyer-Mediator Preparing Legal Documents for Unrepresented Parties. An open public forum on the ramifications of this advisory opinion. Open to any registered member of the wsba-adr.org network.

I hear you, Jeff. Yet, for me, the problem with this advisory opinion is that it tries to answer all "cases" for all time, and ends up, in my opinion, narrowly legalistic and inadequate to its task.…Continue

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I've just come across the following article by Prof. Robert Collins of Benjamin Cardozo School of Law that I thought might be of interest to this group: http://cardozojcr.com/wp-conte…/uploads/…/04/CAC302_crop.pdf. Bob was one of the panelists addressing WSBA Advisory Opinion 2223 at the NW DR Conference several years ago.

We're looking for volunteers for a drafting committee to propose a letter to the advisory committee regarding AO2223. If you are interested, or have any input to make, please join the discussion at the Legislative Committee Meeting tomorrow noon at my office in Seattle.

Lawyer Mediator Drafting of Agreements

As I just sent to our listserve as well, I am advising a committee for our state bar about the role of lawyer-mediators in drafting marital settlement agreements. The committee has already reached a consensus that it would like to permit mediators to draft mediation settlement agreements in family law cases. The key question for the committee is whether to permit this under a joint representation model (in which the lawyer is representing both parties under Rule 2.4 and other rules after the clients waive conflicts) or under a neutral representation model in which the mediator is not representing either party and parties are informed about that “limited” representation which would permit the mediator to draft.

We (read my RA’s) have already done a 50 state survey as to what is going on and there are examples of each in action (i.e. New York is a joint model and Maine is a neutral model and Connecticut seems to permit drafting without picking one of these). What I am looking for is any practice experience or opinions about those models in action. The committee would prefer to go with a neutral model and they want to make sure there are no hidden problems or concerns with that.

We did an in-service training at Kitsap DRC Last week.
The consensus was that, for a variety of reasons, non-lawyer mediators should not worry about Opinion 2223
However, we have modified our forms so that our Parenting Plan Worksheet cannot be entered as a pleading (several redactions from the state forms, including a place for a judge to sign) and our standard Mediation agreement will no longer say that the parties intend this to be a legally binding agreement

(1) In conducting a dispute resolution process, a center established under this chapter shall require:

(a) That the disputing parties enter into a written agreement which expresses the method by which they shall attempt to resolve the issues in dispute; and

(b) That at the conclusion of the dispute resolution process, the parties enter into a written agreement which sets forth the settlement of the issues and the future responsibilities, if any, of each party.

(2) A written agreement entered into with the assistance of a center at the conclusion of the written dispute resolution process is admissible as evidence in any judicial or administrative proceeding.

As far as what to do in the meantime, I like the idea of having the mediation pause after a memo or document is drafted, and then give the parties a choice. Advise them that the mediator cannot represent them individually due to mediators' and attorneys' ethical requirements, so the mediator advises them to hire attorneys to make sure each party understands what they are signing.

Option 1. Ask (after each person's thorough review of the document) that if they believe they mutually understand and agree to what the document states, they can sign a pre-signing agreement stating that they mutually agree in their understanding of the document and they waive any conflict that may exist (or something like that). They then sign the document. I don't know if this would be enough.

Option 2. If there is any hesitancy by a party, that party (or both) should be individual advised by separate attorney(ies) as to the legal implication and understanding of the documents. This could be a very limited representation (and thus limit the cost), where the attorney "interprets" the legal and non-legal wording in a way that her client fully understands the legal consequences of signing. Each party, after being advised by an attorney or waiving legal review, could then sign the agreement with full confidence.

Of course, Option 2 requires a handy list of attorneys that would be willing to conduct such a limited review (ideally for a flat fee), which would focus on the legal implications of the agreed-upon documents, and not what the client should do. Each party would have the option of having an attorney's full legal advice, of course.

From my reading of this ill-advised advisory opinion, it doesn't apply to non-lawyer mediators... BUT the logical next step (which has not been taken yet) is that drafting documents from mediated agreements is the practice of law. So I understand the fear of non-lawyer mediators who fear that they may be accused by the Practice of Law Board of the unauthorized practice of law (See GR 24 & 25). But we're not there at the moment.

Honestly, I think the only real solution to this is to have the Opinion vacated or superseded, either by another Advisory Opinion or by a WA Supreme Court ruling. Of course, seeking such a solution entails a significant risk of Opinion 2223 being affirmed by the Supreme Court. One idea is to have the WSBA ADR Section form a committee of learned attorneys, mediators and law professors to tackle the best way to address this.

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